Digital fever: A scholar's copyright dilemma

Pergamon

Musrum

Munugrmrni

SO2604779(96)00020-9

Digital Fever: A Scholar’s Dilemma’ ROBERT

and Curatorship, Vol. 15, No. I, pp. 49-64, 1996 CopyrIght 0 1996 Elswier Science Ltd Printed in Great Britain. All rights reserved 0260-4779/95 Sl5.00 + 0 00

Copyright

A. BARON

In newspapers and journals, on the Internet discussion lists and World Wide Web pages, and indeed, almost everywhere one cares to look, are to be found reports on how the information revolution is going to transform the world of information as we know it. Pundits expect museum programs and art history studies, especially, to be transformed entirely. The Information Super-Highway, and the World Wide Web have facilitated the merging of massive data stores with interactive hyper-media. The effects of this confluence may rival, in its consequence, the adoption of Gutenberg’s system of using movable type. Art historians and publishers, museum curators and cultural promoters, art educators, librarians and information specialists all foresee their journey along this road as more intense, more profound, more expansive and more productive than ever. The route to cyber-Eldorado, they envisage, will offer ever renewing resources in an expanding arena of information access-all made possible by this new-fangled freedom from the fetters of manual information acquisition. Those of us who have come to depend on even relatively primitive Online Public Access (library) Catalogues (OPACS) or who have taken World Wide Web tours of museums and collections located half-a-world away, know for sure that scholarship and access to information resources have already profoundly changed and will continue to do so at an accelerating rate. Although the dream seems to be becoming a reality, few have chosen to step off the triumphal bandwagon for long enough to forecast the consequences or to assessthe costs of embracing these advances. It is easy to imagine how these new tools and methods may make our lives as workers in the visual arts easier or more efficient. Certainly one can speculate as to how the general public may benefit. Yet, to accept progress, to use its gifts, to make the tools of the future serve our needs, it is crucial that we do not drive down this course with blind abandon-with ‘petal to the metal’, as they say. It may be important to watch the road ahead, but it is equally important to keep glancing through our rear-view mirror. Just as we want to know where we are and where we are going, we must also remember where we are coming from. To make the on-line apparatus of the coming age valuable and worthwhile, we must be sure to understand how our manual, non-digital work-a-day resources serve our current goals. To a large measure the successof this technology in the future will depend upon how well it succeedsin providing a better way to achieve what we value now.

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Central to all work in the visual arts, and the key to our electronic future, is the process of finding and using images. We need to know how our on-line age will affect our range and depth of access, how mundane affairs such as researching images and obtaining permission to use those images will be affected, and how the mores of a digital and electronic present will affect how we use our customary resources in the future. One of the core issuesis best discussed from the student’s perspective. In preparing his dissertation, the doctoral student undergoes a rite of passagethat leads him from university womb into the harsher realities of so-called ‘real life’, and with ever increasing frequency, students are being exposed during it to marketplace actualities. Universities are asking their doctoral students to honor claims of copyright in their use of images and resources. Dissertation publishers such as University Microfilms International (UMI), require dissertations for publication to comply with the laws that govern commercial use of images in published works. The student quickly learns that his cloistered enclave is being invaded by a world of commercial rights and properties. Soon he will learn that honoring these obligations may absorb most of the potential profits to be derived from his subsequent publishing endeavors. He may see himself as caught in a crisis of identity-is he a scholar or a commercial being? He is caught in a web of competing interests. While forced to respect the copyright of his sources, he is also often required to assign the copyright of his own work to his publishers. Copyright laws often contain an escape clause entitled ‘fair use’, by which the legal obligations to copyright holders may be considered suspended for certain non-commercial and educational purposes. 2 Should not doctoral students be able to consider their use of dissertation images ‘fair use’ as defined by copyright law? Why are the universities and dissertation publishers holding their work to the same legal standards as those demanded of for-profit professional publishers? If students are not allowed to claim fair use for this ultimate project, we must ask ourselves why? But if certain uses are deemed ‘fair use’, where does scholarly activity fall within the array of activities defined by intellectual property law? Are scholars immune from legal obligations? (as some would have it), or must they accept that their activity is as much a commercial endeavor asnon-scholarly enterprises? The paper here set before the reader looks at the constellation of working methods, electronic tools, laws and attitudes in an attempt better to clarify the turbulence at this crush of past against future. While this paper is not about copyright law, and is certainly not a technical discussion of copyright, it does depend upon copyright concepts. It does so because, like it or not, the issues of copyright and ‘fair use’ have become the defining metaphor which our societies have adopted to articulate and enforce cultural values. Copyright law controls the balance between the need of society to encourage private interests and its responsibility to serve the public good. On-line accessto images comes with the threat that increasingly vigorous and efficient copyright enforcement will imperil the ability of ‘fair users’ to assert their claim to ‘fair use’. The ‘White Paper’ for the National (US) Information Infrastructure prepared under Bruce Lehman, the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, bluntly states that ‘it may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine,” as if to imply that fair use is not a viable concept, but just an acknowledgement of an inability to force

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compliance. It is clear that the growing administrative efficiency of providing electronic images on-line and accounting for their licensing has already eroded the traditional practice of using scholarly images in a ‘fair use environment’. Without acceptable agreements and protocols there will be no suitable means by which scholars and educators will be able to utilize electronic archives while preserving their traditional exemptions and freedoms. Alan Newman, Executive Director of Imaging & Technical Services at The Art Institute of Chicago suggests that a blanket exemption to copyright infringement be made for very small low resolution (thumb-nail) images and their accompanying identifying text. By accepting a ‘resolution ceiling’, he maintains, “all facets of the educational community will be duly served. Rights holders will retain protection of their “commercial” holdings while educators and students will be untethered in their teaching and research. Museums are at once rights licensees and licensers, so this dichotomy could be resolved in terms of computer exchange of images. Rights departments should be somewhat freed of requests for teaching aids (slides) which represent overhead for museums. Rights holders would have to lobby through organizations like the College Art Association to adopt a consensus ‘resolution ceiling’ as part of fair use, and then this would need to be legislated. ‘This proposal is a modest first step, not a cure all,” he states.4 The idea of establishing a fair use resolution ceiling offers one way in which technology may be used to solve the problems of providing intellectual access to images within the confines of fair use, but it also exposes problems underlying the use of this technology for scholarship and research. These problems are threefold: they concern what is accessed, how access is achieved, and who has access. Scholarship,

Image

Resolution

and On-line

Research

The proposal that a ‘resolution ceiling’ can be used to establish a watershed between what may be obtained and used freely and what must be bought or licensed, has often been suggested as the means by which individuals may browse image collections electronically without incurring usage or downloading fees and, practically speaking, without having to wait for large slowly ported files to be downloaded to the user. If image vendors and other ‘content providers’ wish to publicize their collections and offer searchable on-line catalogues, then this technique may prove quite useful. It is, after all, a more evolved and (hopefully) intelligent version of the printed published catalogues which vendors send through the mails. It is already being used with varying results to make available slide collections, course outlines, and museum tours on the World Wide Web.5 However, for true intellectual access to images, the ‘resolution ceiling’ and other on-line strategies present problems. One of these pertains to how scholars really work, and how they collect and use published images, in comparison with how they may use downloadable ones. When a scholar consults a library volume from the shelves, he has free access to images of varying qualities and resolutions-from small half-tones to large multi-color or highly resolved black and white images. Physical access allows users to scan visually hundreds of images with amazing speed. For a pittance, anyone can make high-quality legal ‘fair use’ xerographic copies of those images to be retained in a working portfolio. In contrast, even

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under the best of circumstances, browsing low resolution images free on-line presents potentially unsurmountable problems for scholars. One of these lies in the difficulty users have in specifying exactly for what they are searching, a problem which is compounded by the vague data definitions provided in on-line searching tools, and made all the worse, sad to say, by an equally deplorable data architecture in which to execute a sophisticated query. In our electronic world, access to collections of low resolution images will certainly become an important tool, useful to eliminate images from consideration or to collect quick copies to aid memory. However, for many scholarly uses, higher resolution is needed-perhaps not of publishable grade-but highresolution images will always be necessary to consult and retain. Indeed, for many purposes, such as in manuscript, stylistic or iconographical studies, low resolution images may be entirely useless. Minimal acceptable resolution will always be a function of the object being photographed and the information needs of the user; it cannot be set by convention or legislation. Potentially, there is a considerably higher level of intellectual selection taking place when choosing images from a book, as against querying an image database. Assuming that the on-line tools (though primitive now) will eventually become sufficiently powerful to allow a highly qualified selection-by attribution, subject, location, or provenance, even across databases, for example, the on-line selection process will be ‘active’ compared to the relative passivity of choosing items by their default library classifications. Shelf location in a research library reflects a high level of intellectual structure and, as such, silently aids many researchers. The very physicality of books makes it much easier to classify and accesstheir contents. Users readily distinguish between scholarly and popular books, small surveys and specialized studies, books with high quality images and those with poor ones, books with many detailed pictures on specialized subjects, and books that just survey a period or place. Journals have an identifiable personality, too. Books provide de facto research clues and offer levels of content and content structure not yet found in image databases. Researchers may find images juxtaposed with others and be led via an indirect directed serendipity to yet other unimagined places. Authority is important, too. Following a respected author’s publications will lead a researcher to undiscovered images and sources. In short, research depends on the fact that scholarship builds upon itself, using its own history as a foundation for future efforts. In image databases,until such time that the collective intelligence and experience of researchers can be captured (there are ongoing efforts in this direction), objects will appear as disconnected flotsam, bobbing about without many external connections or structures. Furthermore, the computer user’s virtual desk is very small; it will be a long time before any on-line image access method will be able to compete with a library table strewn with ten or twenty books, each open to a different image, and each with bookmarks locating specific places. In an effort to make one’s own cyber workspace more manageable, computer designers have adopted the desktop as a working metaphor; even so, it will be a long time before we are willing to abandon the comfortable chaotic clutter of work in progress. Physical location remains one of the best ways to keep track of intellectual models. One of the most important of research strategies, simple browsing, will be transfigured on-line. Often computers cannot distinguish between a user looking through information and a user finding it. In the library, accessis effectively free

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for all users (the primary access costs of libraries are paid for before a book is used, even if it is never used). In contrast, consulting a high-resolution image on line, even if it is only for study and not for publication, will certainly be a chargeable activity. The ‘White Paper’ even defines on-line browsing as making a copy-a licensable act.6 Without doubt, there will be many billing and licensing models made available with which to pay for image access. ’ The academic researcher may never realize that his online research is costing money. However, one way or another, his department, his school, or some other entity will be footing the bill. This bill will be tallied by usage or by license tariffs. In libraries, aside from occasional maintenance and reshelving costs, books are paid for only once, but on-line, information may be sold time and time again, even to the same customer. Intellectual property on-line is the perfect product; it is never depleted, never out of stock, and never in over supply. In libraries the individual consumer’s share of the operating cost is too indirect to track, but on-line, acquisition costs are replaced by usage fees and every use creates its associated record. Paradoxically, in the present inability to link costs to use lies one of the library’s chief benefits, and one of the mechanisms that helps guarantee freedom of access to scholars. The ability of the computer to monitor every action, to record every use, and to compile individual and demographic usage patterns, is a direct threat to free inquiry. When image access and usage fees are charged-be they directly or indirectly-there will always be an economic disincentive to carry on research and a corresponding incentive to concentrate on efficiency, that old enemy of invention. No matter what arrangement may have been devised to pay for usage, when push comes to shove, the bill will almost always come to rest at the foot of the end user. In the beginning, a school or patron may pick up the tab, perhaps by paying a general license fee to resource owners. However, later, when cost cutting measures are introduced (as is inevitable), fees will be reassigned in an ever narrowing spiral until they stop at the feet of individual scholar. Scholars will initially be given individual expense allowances for on-line access, and having exhausted them, they, will no doubt, be charged directly. Independent scholars, those without university or other affiliation, will be the most disadvantaged. Th ey will be left outside the subsidized circle of access entirely, Ln” :-:.z:-cland wi!! be forced to fend for themselves. More surely than an;- zt.,,. tool, electronic access, while it promises to democratize access to information resources, can in reality be counted upon to create a caste system of haves and havenots. The world of on-line access will be divided into two camps: those for whom expenses are paid by others and those who must pay their own way. In an editorial in his quarterly journal, Archives and Museum Informatics,8 David Bearman proposes that the rights of on-line copyright holders should be respected and indeed strengthened. He is fearful that excessive exercise of ‘fair use’ exemptions might tend to erode the profitability of the information industry and therefore blight it through a reduction of incentive. He welcomes the possibility that the user will now be asked to bear the true costs for the use of information and images, and that unattributable up-front library charges for intellectual property will eventually disappear.’ While there would appear to be an unfortunate inevitability in Mr Bearman’s prognostications, it is not apparent that scholarship and education will be served well by such practices-at least

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when measured against the traditional and current expectations based on free access. Ignoring the question of cost and affordability, one may assume that what is to be made available on-line will always be in danger of disappearing. Continued availability will depend upon profitability-a measurement so easy to quantify in automated environments-because when on-line access becomes the norm, the survival of information will be a function of its marketability. Some items will be popular best sellers, but those items that are rarely called for will soon be marked for elimination. In contrast, published books are-at least in theory-collected for permanence. Their contents and images, for better or worse, represent what was perceived to be significant at the time of publication. Published works are selfarchiving, and they cannot easily be manipulated to adjust for past and present points of view. i” In all information stores, libraries included, deaccession decisions are routine; but, they are less frequent in libraries of record. In such libraries, some items are kept on the shelf forever because they are significant or unique, but there is no incentive for purveyors of on-line information to take actions not in their own short-term economic interest. While books and other tangible records eventually enter the public domain, on-line resources can be withdrawn and renewed before that ever happens. For copyright holders, the public domain is the edge of the world; but on-line access systems will prevent intellectual properties from crossing that line. Copyright laws that have traditionally permitted ‘fair use’ exemptions for published copyrighted materials, when their purpose is educational and non-profit, may not be able to withstand the coercive mechanics of automated up-front billing. Narrowly-based contracts and the mechanics of supply and demand will replace the broader provisions of our laws of copyright and ‘fair use’. On-line vendors will be under continual financial pressure to remove those items that are never accessed-so as to use their storage space better for things that are sure to contribute to their revenue stream. In consequence, the on-line scholar will be poorly served by the elimination of rarely used but potentially important files. Research libraries often cannot be certain which books are being used and which are not. Some critics will say that this ignorance makes for poor management, but others recognize that the dissociation of usage records from availability is a positive asset to scholars who by the nature of their researches need access to unusual and rarely used resources. The Scholar’s

Exemption

Bearman’s plea, though threatening the traditions and mores of most current scholarship and research, acknowledges an unwelcome truth. He implies that servicing to scholarship is, in itself, a commercial enterprise, and that scholars, like it or not, are today part of that demographic group of commercial consumers and producers known as the intelligentsia. To accept the thesis that there should be no special exemption for the scholarly use of intellectual property is to acknowledge that the nature and function of scholarship itself has been redefined. Scholars, no matter how they define themselves to the trades are embodied in business models built for profit. If scholarly activity is to be redefined as a commercial endeavor, one must also accept a new reality-that there is an economic justification for the production

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of scholarly works. Following this teleology: scholars are paid; publication leads to promotion, and promotion to increased salary, all of which increase economic, social, professional and intellectual status. ” While obviously overly simplistic, this model is nonetheless a fair approximation of the economic/social paradigm by which many modern scholars already live. In the United States of America, and probably elsewhere, the ranks of university professors are overwhelmingly filled with individuals whose families have relatively recently risen to the professional middle class, and their profession is their vocation. On the other hand, when the scholarly community was almost entirely dominated by members of a financially independent class of practitioners, or when poverty was more socially acceptable, scholars could easily see themselves (with a little selfdeception) as outside of the economic circle. When scholars must consider the cost of every decision to access a work or not, and when they must decide whether to look on-line for information resources or not, the longstanding credo of scholarly pursuit-freedom of access, freedom of expression-will have already been subverted by economic priorities. The conflict between free access and copyright is precipitated by the strife that arises when the modern scholar dreams of himself and his high calling as part of a worthy and venerable tradition outside of economic warrant, while the vendor looks at him as just another customer. Consequently, if scholars are forced to abandon this ancient vision of their calling, they must inevitably come face to face with their uncertain standing as economic beings. The institutional scholar, supported by his museum or department, and by university, government or foundation grants, will be given leave to continue to live his fiction for a while, but the independent scholar, pursuing an unsupported or unsupportable agenda, may soon find that his access to the tools and resources available to others is diminishing, not by dint of diminishing rights of access, but rather because it will be increasingly likely that he cannot afford to use them. Scholarship, traditionally understood in Western Civilization as an individual quest for truth or understanding will have been modified into a directed pursuit in which the will of the institutional grant-giving agency or patron is imposed through control of the purse-strings. One can argue that the direct influence of patrons on scholarship represents a longstanding tradition, but our romantic view of the power of the individual research initiative still absorbs our imagination to the exclusion of assessing the influence of money and patronage. Several years ago, in a letter to The New York Times, a reader wrote that what the on-line world of information resources badly needs is another Andrew Carnegie, the great benefactor of the American and United Kingdom free library system-someone who will provide the means to ensure that on-line information will be made available at non-commercial rates. Embodied in this petition is the tacit acknowledgement that information costs money and that the owners and creators of intellectual property are owed their due. The ideal key to ending the strife between the copyright maximalists and the copyright minimalists would seem to lie in the largess of a beneficent but altruistic donor-the impossible dream. l2 Nevertheless, the p romise of free access to information rests on the fundamental belief that society as a whole benefits by carefully balancing the rights of creators to benefit from their creations, with the right of society eventually to use those creations freely. United States copyright law provides two

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ways in which the public may obtain free access to creative materials: (1) by terminating author rights after a given number of years; and (2) through the widespread implementation of the ‘fair use’ doctrine, an idea that goes hand in hand with the national tradition of free accessand has provided the rationale for the expiration of copyright protection for creative work.13 Publishing Reproductions Nowhere are the notions of ‘fair use’ and ‘public domain’ more enigmatic than in their application to the use of images in education and scholarly publishing. How society decides to balance education’s prerogative against the needs of rights holders and rights claimants may hinge upon how education and scholarship arc defined in the social and economic model. Are the traditional ‘fair users’ to be reconstructed in an attempt to draw them into the same class as commercial users? An analysis of intellectual property rights from multiple points of view may help us understand better the dilemma. In the past, it was generally understood that permitting the scholarly use of images in articles and other published undertakings was a service to the world of knowledge, and may even enhance the percuniary value of the objects reproduced. No one imagined that publishing an image of an object would diminish the value of any commercial interest held in that object or in photographs of it. In earlier times, rarely did anyone ever insist on the publisher obtaining a privilege to reproduce images in scholarly works-no matter what level of quality or resolution was intended or how widely they were to be distributed. In early art history books credits and identifications of location tend to be the same thing and illustrations give the immediate source of an image, be that another journal or the vendor of the photograph. Typically, when a print is reproduced, or when reproductive drawings after other works appeared, no credit would be given at all. l4 However, times have changed. The market for art reproductions has matured and is flourishing, nurtured by the ability to produce engaging facsimiles and reproductions of objects and by the increasing demand for them. Fine reproductions may be found in printed books, post cards, posters, slides and now electronic images. The scholarly population has likewise matured, and has evolved into an industry in which the newest events, findings and views are rendered into products or news articles suitable for consumption by an increasingly acquisitive intelligentsia. What had once been a community of cottage industries that provided varieties of photographs for tourists to buy and scholars to publish without special permission, has evolved into full scale business ventures serving a culture-hungry population and its attendant interpreters. Today, scholars and non-profit enterprises make up only a small segment of the image consuming market. Today’s scholar is both an end user of images and an agent connecting image owners with publishers. The distinction between nonprofit educational uses and commercial applications-a distinction that underlies the definition of ‘fair use’ in the United States Copyright Act (1976)-is more difficult to discern today than it was in 1920. Images that may have had little or no commercial potential eighty years ago are now ripe for entrepreneurial and commercial exploitation. One cause of this change is the expansion and increasing homogeneity of both the market and marketplace for

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images, as is demonstrated, as much by the explosion of art history as an academic discipline, as in the use of images of all kinds by commercial publishing and advertising enterprises. Thus, in an environment in which the scholarly and the commercial are compounded within the same crucible of commerce, it is crucial to determine where published images of art (the photographs) stand as intellectual property. As Andy Warhol has shown us, true value lies, today, more in an object’s promotional potential and less in its tangible presence. The question, who will have the power to license and copyright images, is therefore vital. Will reproductive images of objects appearing in the media, including scholarly journals and academic papers, stand the test of minimal creativity that the statute requires in order for them to earn copyright. 715What debt is owed to the creator of the original or to the owner of the original upon which the photograph is based? The definition of reproductive photography in this regard is especially meaningful for works that have passed into the public domain. By applying our copyright laws ex post facto, almost all creative works in the history of art have already passed into the public domain-that non-substantial place in which no one may lay proprietary claim to creative works. Copyright is a concept invented to provide percuniary value to works that have no intrinsic worth of their ownspecifically literary works and, by extension, other creative and original products. Art objects, however, are different from written works in that they are unique, tangible and on occasion valuable. It is impossible to limit access to a published literary work, but by controlling physical access to objects, object owners have the opportunity and power to govern the making, use and licensing of reproductive photographs depicting them. In short, they have a monopolistic hold on objects. To preserve this franchise, and to sell images of items included in their holdings, galleries and museums will often prohibit all photography within their spaces or allow only such photography as is guaranteed to produce unpublishable results, sometimes going so far as to warn visitors that their own photographs may only be used for personal purposes. Moreover, when a work of art is reproduced and published, unlike literature, the result is almost never an exact equivalent of the original. Reproductions are always inferior, incomplete, and to some degree an unfaithful reproduction of the model. On the other hand, reproductions can set out to interpret their subjects, infusing the photographer’s vision into the photograph, while isolating the work from its original or adaptive context. The object then becomes recontextualized into the four-square framed world of photography.” The degree of interpretation and thus originality tends to be higher when the subject is architectural or sculptural, and less when the work is Z-dimensional, until a simple woodcut or graphic is reached where the latitude for individual interpretation would seem to be very limited. Object owners have, not unreasonably, exercised the right to control both the original object and those reproductions made after it, and of course, they have every motive to control use of images. Their claim is strong and may not need to bow to copyright at all. But may owners control photographic images in such a manner that the expiration of copyright protection for the reproduction of a particular photographic image will not necessarily place that image in the public domain? Does the fact that a photograph provides an image of a unique privately-held, original object confer, in practice, perpetuity rights to the object’s owner?-rights that are more durable than copyright itself? It would

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seem logical that an object’s owner has the right to allow or disallow photography of his object. If he allows it, he also has the right to license the use of the photograph in such a way that those rights will expire before copyright. In the final analysis, owners may not be able to control all published reproductions of their works, but they may be able to control all publishable ones.17 These speculations paint a dire scenario for authors and scholars. The art scholar’s claim to ‘fair use’, it seems, may be only as useful as the quality of an obtainable image. In literature, quoting short sections of literary works or poems in a scholarly or critical work is generally permissible under ‘fair use’. What is even more important, possibly, is what activity in Fine Arts publishing corresponds to the ‘fairly used’, unlicensed literary quotation?” Is the reproduction of a small scale black and white photograph the legal equivalent in pictorial terms to a quotation ? Certainly, publishing a black and white reduced photograph of, say, a large painted canvas cannot be said to be a reproduction of a work in its totality, whereas reproducing a New Yorker cartoon may be more easily recognized as copyright infringement. Furthermore, if a scholar reproduces a museum photograph of a ‘public domain’ work without authorization, he may be circumventing the museum’s intention of making money on a copyrighted photograph and thus his action may be held to diminish its asset value by abrogating the museum’s exclusive right to its exploitation. United States copyright code states that to determine whether a use is fair, one must consider ‘the effect of the use upon the potential market for or value of the copyrighted work’.” These are difficult questions to answer. Does the reproduction of an artwork in a scholarly journal reduce the demand for the original? Certainly not, some would maintain, indeed it may produce just the opposite effect, increasing demand by making it better known and better understood. One might imagine that the road to commercial success for an object begins on a path that includes a scholarly discussion of the object through the medium of an image of it. Once its significance, aesthetic or historical worth has been established, commercial exploitation of the object may soon follow. On the other hand, detractors of the owners’ claim of copyright sometimes argue that photographic reproductions of works in the public domain often do not contain a sufficient degree of originality to earn a copyrighted status. They say, if the intention is strictly reproductive, then the rights to the photograph are the same as the rights to the design of the object itself. The object may be owned by a museum, but its image is free for anyone to use in any way they choose. They claim that museums have no propriety rights here. Often this argument is posed as a question of freedom of expression, the banner of which is Marcel Duchamp’s LHOOQ.2” Scholars and publishers will often ask: ‘Whose intellectual property is this anyway?’ Are not these public domain images properly the property of all mankind? In terms of public policy, in a public museum, what is the relationship between an object of art and its image ? Are the museums and private owners holding our common, inherited patrimony hostage to their self-serving ends? Should not museums see themselves as humble stewards protecting works for posterity while making them available for the present? Does not the intellectual community have an innate right to reasonably free, unencumbered access to images concomitant with its freedom to discuss them? What is the purpose of the

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statutory limitation on copyright, as applied to images, if items in the public domain are not to be freely accessible to the public as publishable images? The liberties given to the educational, news, scientific and scholarly communities in the name of ‘fair use’ are ultimately based upon the assumption that there is a distinction between a private good and a public good. News reporters have access to a wider range of copyrighted materials than other users. The degree of ‘fair use’ access decreases in proportion to how much its use benefits a private good. Nevertheless, while there may be some activities which benefit the private good that are also in the public good, all activities in the public good serve some private good as well. Assuming that all the tests of ‘fair use’ are passed, the question of who is benefiting, and who is deprived of income from ‘fair use’, makes it very difficult to draw a line in the sand that states that this use is infringing and that use is not.21 While newspapers cannot protect the facts of their stories from use by others, they can protect the expression used to convey these facts. On the other hand, news photographs, ostensibly the visual expression of ‘facts’, are considered expressive and creative; they are copyrighted and a newspaper cannot reproduce a current news photo that appeared in a rival paper without first having received permission. On the other hand, newspapers do not have to clear rights to publish images of works of art, even new ones under copyright. For the news industry, why are news photographs classified differently from museum objects? What is the difference between news reportage and analysis and scholarly analysis that permits fair use in one instance and seems to prohibit it in another? Traditions

Collide

Today it is becoming ever more difficult to determine where the scholarly use of images ends and the commercial use begins. The distinctions between use for private good and for public good are interwoven with an increasingly invisible seam. The amalgam of public and private interests working for the public good is pervasive in our society. Intellectual properties, such as television dramas, can be produced and shown in the non-commercial media before or after they have been purchased for the for-profit industry. In the visual arts, scholarly treatises and catalogues are used as texts in for-profit ‘coffee-table’ books that are marketed to both lay and scholarly readers. Scholarly exhibition catalogues are peddled to exhibition visitors as expensive souvenirs, while picture books aimed at popular audiences are collected by scholars and scholarly libraries for their documentary value. Industries have developed to serve visual resource collections and teachers that, in turn, target commercial publishers. In this world where social value builds on information and style, it is not surprising that the term ‘intellectual property’ has been given what publicists call a ‘spin’. For the most part, intellectual property is neither intellectual nor property, at least not in the sense of “real property” or real intellect. The term must certainly have been created as a social and legal pretext for gilding the creative products of the commercial present with the values of the past: established authority and assured stature.22 The tradition that forms the root of the pro- and anti-copyright conflict, that which allows free access to images and permits them to be reproduced for scholarly purposes without permission, seems to be grounded in a long-

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established Western convention of differentiating intellectual and humanistic speech from commercial discourse. The former is for the good of Man, the latter for the good of men. The core of this belief system rests on a practice that sharply divides humanist enterprise from profit-making endeavors. Eighteenth century American libraries were commonly divided into two classes,those for the liberal arts, and those for the practical arts or commerce. These Athenaea and Mercantile Libraries underlie the division of American educational curricula into programs in Academic Studies and Commerce. Readers can quickly surmise for themselves that these practices are ultimately founded on a value system that orders and regards men’s enterprises hierarchically. The influence of this ethos is so pervasive that its manifestations are mostly self-evident. Its ancient lineage can be with certainty traced, if not even further back, at least to Western Civilization’s roots in Classical Platonism where ideas are ranked higher than things. Within the history of Western thought, this idea emerges again in the Christian assertion that man’s ultimate purpose is to imitate the divine. In Post-Renaissance art theory it comes up once again as the notion of the peintre philosophe in whose activity the transcendental goals of painting triumph over the mere craft of it. This hierarchical philosophy affects the rank given to historical and moral subject matter in the French Academy, and later is made manifest in such credos as ‘l’art pour l’art’, and in aesthetic theories that promote pure form and expression over the natural and utilitarian-as seen more recently in the various schools of abstract painting, among others. We are accustomed to the distinction that contrasts the merchant to the philosopher, the engineer to the painter, the scientist to the poet. Of course, these polar generalizations, denote false dichotomies, abstractions of realities expressed as extremes, but they are useful to give meaning to our self-image and to order our priorities and values. But, at least from the Post-Medieval era onwards, the figure of the gentlemanly, scholarly, humanist painter, or, later, the romantic vision of the bohemian and rebel painter were to become associated with the tradition of the amateur, the gentleman and the independent scholar whose quests and investigations express inner needs and perform altruistic deeds for the benefit of all mankind.23 Evidence of th e unique status society bestows upon scholars and men in the arts and humanities may be found, ironically, in the tradition of ridicule and satire that Western culture sometimes uses to caricature scientists and humanists by placing them outside of the domain of the daily economy of living. This distinction is brought to mind in a recent issue of the New Yorker magazine. In an April 1995 cartoon, a painter, at his easel, is looking at his impatient wife, and says to her something like: ‘No, a stock-broker is a workaholic, I’m obsessed’. Ob session-the unavoidable compulsion to act without regard for consequence, or the ‘inescapable preoccupation with an idea or emotion’-when viewed as the motive for creative force becomes one paradigm of the artistic and the scholarly temperament.24 Indeed, similar polarities are acted out in the biographies of great families and lesser ones. It is not uncommon to see the commercial and the intellectual inclinations of family members kept quite distinct, as with the Warburgs or (referring to a recent obituary at hand) to Corliss Lamont who was described as ‘a humanist scion of Wall Street who led a lifelong fight for civil liberties’.25 Do these personal choices echo the customs of times when it was traditional for families to give one male child to the church while other members were expected to devote their lives to

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business? A related dichotomy may be found among some Jewish families from Russia and Poland where it was understood that the husband’s role was to devote himself to learning and prayer, while the wife managed the family business. As heirs to life-choice patterns built into the fabric of aristocratic and bourgeois life, our social and economic traditions have prepared us to look at scholars and artists as different from others, to consider their work (among other things) as a contribution to the welfare of civilization and not just another part of the economic matrix in which they live. Artists, especially, have been romanticized by this myth, but other callings also share in it.26 Even now, both scholarly conceit and the popular perception of the scholar refuse to admit that the scholar is an integral part of the economic tapestry of society-which is, of course, simply untrue. Perhaps the humanist scholar has fostered, with public complicity, an image of himself or herself as a member of a class aside, such as had been, on occasion, signified in time past by exemption from the demands of state taxation.27 Today, the residue of the scholar’s traditional persona manifests itself as a belief that there is a scholastic warrant to accessand use freely resources germane to a chosen enterprise-for this enterprise is not done for the benefit of self, but rather for the good of the discipline and mankind.28 Curiously, although the very idea of copyright was developed to protect the work of creative individuals (first authors, then artists) from unfair appropriations by the market, it was never assumed that scholarly reportage and comment were economic endeavors. The history of the extension of the protections of copyright in the United States is one that begins with artistic and creative work, and ends in protecting the work of commercial enterprise. In contrast, the history of the notion of ‘fair use’ is rooted in the assumptions of humanist exemption from crude commercial pressures. And hence the dilemma: When copyright protection was extended to cover creative works, literature, art, painting, photography, it was already understood by business that creativity and its products had economic value. Commerce came to this realization long before the scholarly community. Conclusion Much of the conflict apparent today between rights holders and scholarly users may be traced to an hypocrisy that expects scholars to donate their efforts to the common good and asks them to pay their own way in the process. Following that regime, it is inevitable that scholars will come into ever greater conflict with the world around them. It is a mean society, indeed, that seeks to judge all academic production by this commercial standard. With conspicuous exceptions, contemporary scholars have been placed in the unenviable position of having to try to meet the traditional expectations of scholarly productivity, and to provide a level of service consistent with their professional function as educators, all the while discovering it ever more difficult to obtain the intellectual resources necessary to fulfill their inherited humanist self-image. Scholars, especially those in the humanities, are being asked to plant their feet in two isolated worlds that cannot coexist together: one is in the past, the other, in the present. When the doctoral student is required to obtain publication rights for his dissertation images, this may be his first introduction to the conflicting duality of modern scholarly life. In this rude awakening the student is being made an

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unwitting casualty of the crush of the old world against the new. Any solution to the predicament of access and ownership will necessarily entail that the public at large and the scholarly community itself come to grips with the mystery of who scholars are, what benefit society derives from scholarship, and how, in the future, scholarly activities are to be supported. As always, the solution will require choosing values. The resolution of the issue will be symbolized by the amount of money dedicated to making scholarship happen or by the rights and privileges society wishes to invest in those who dedicate themselves to scholarly activity. We are living in a society that is making it ever more difficult to escape the rising tide of commercialism that invades every moment and space we occupy. Because of this, for better or worse, the journey into our information future may make it impossible for the scholarly community to turn back to its old ways and to reassert its traditional values and apply its customary methods. If forced to jump onto the tram that leads down the information highway, it does not seem unreasonable to expect that scholars should at least get a ride for their nickel. Notes 1. This paper is adapted from discussions posted to the Internet lists MUSEUM-L ([email protected]) and CAAH (C onsortium of Arc and Architectural Historians; [email protected]). 2. The burden of proof to prove ‘fair use’ must be carried by a defendant charged with copyright infringement. See, Intellectual Property and the National Information Infrastructure, The Report of the Working Group on Intellectual Property Rights, Bruce A. Lehman, Chair.

3. 4. 5. 6. 7.

8. 9. 10. 11. 12.

Assistant

Secretary

of Commerce

and

Commissioner

of Patents

and

Trademarks,

[henceforth, ‘The White Paper’]. Information Infrastructure Task Force, Ronald H. Brown, Secretary of Commerce, Chair. Washington, D.C., 1995, p. 73, n. 229. ‘The White Paper’, op. cit. p. 82. This passage was brought to my attention in a post made to MUSEUM-L on 27 April, 1995 by Alan Newman ([email protected]). ‘The White Paper’, op. cit. Note 2. See Corbis Corporations’ web site at http://www.corbis.com and Picture Network International (PNI) at http://www.publishersdepot.com, For an analysis of how the ‘White Paper’ on intellectual property recommends the abandonment of fair use privileges, see Pamela Samuelson, ‘The Copyright Grab’, Wired, Vol. 4, No. 1 (January 1996), p. 134. One such project is MESL, the Getty Educational Site Licensing Project. This endeavor intends to ‘make art-historical information more accessible through electronic technoogy’. It ‘is working to bridge the gap between image users and rights holders’ by defining ‘the terms and conditions for educational use of museum images and information on campus-wide networks’. Quoted from the Museum Educational Site Licensing Project Fact Sheet, The Getty Art History Information Program, 22 March, 1995. Vol. 8, No. 3. 1994. This argument is remarkably similar to the opinion that museums and other cultural organizations should be paid for by those who use them. The state, it is argued, has no abiding interest in maintaining cultural institutions. In Orwell’s 1984, the protagonist Winston Smith is employed to change the historical record. Jerry Brown, during his tenure as Governor of the State of California, claimed that the state’s academic faculty are paid in ‘psychic bucks’ in addition to salary. Samuelson, op. cit., uses the terms ‘maximalist and ‘minimalists’ to characterize the forces in this debate. Paul Goldstein, in Copyright’s Highway: The Law and Lore of Copyrigbt from Gutenberg to the CelestialJukebox (New York, 1994) calls these sides the ‘copyright optimists’ and ‘copyright pessimists’, a phraseology that seems to look at ‘fair use’ claimants pejoratively.

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13. The US Constitution gives Congress the power to ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. (Art. I., Sect. 8, cl. 8, as quoted in ‘The White Paper’, op. cit.). See especially the ruling by Sandra Day O’Connor in F&SS Publications, Inc. v. Rural Telephone Service Co. ‘The primary objective of copyright is not to reward the labor of authors, but lo promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right in their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.’ 14. The 1870 edition of Paul Lacroix’s The Arts in the Middle Ages, and at the period of the Renaissunce (New York, D. Appleton and Co.) is illustrated with chromolithographic prints and woodcut engravings. Only the chromolithographs are attributed to an artist, the woodcuts are anonymous. No illustration bears a copyright. While many works indicate the collection or location from which they are drawn, many minor objects are reproduced without any indication of source. Graphic objects are often identified without designating location or owner. 15. ‘The requirements of originality and creativity are derived from the statutory qualifications that copyright protection extends only to “original works of authorship.” To be original-a work merely must be one of independent creation, i.e., not copied from another. There is no requirement that the work be novel (as in patent law), unique or ingenious. To be creative, there must only be a modicum of creativity. The level required is exceedingly low; “even a slight amount will suffice “.’ “The White Paper,’ op. cit., p. 24-25. 16. See Andre Malraux, The Voices of Silence, Princeton University Press (Bollingen Series XXIV-A), Princeton, N.J. 1990, Ch. I: ‘Museum Without Walls,’ Section II, p. 17. 17. It is in the interest of society that while an individual can claim ownership of a unique object, rights to an image of that work should be separated from the work itself. Is it a fact that the right to reproduce an image of an object must be viewed as an encumbrance on ownership rights? Should new owners be informed that there exists intellectual property, either held by copyright or in the public domain, that restricts the owner’s total control of the work? 18. On this and other issues of ‘fair use’ of copyrighted materials in a museum context see Stephen E. Weil, ‘Fair Use/Museum Use: How Close is the Overlap,’ to appear in a forthcoming issue of Visuul Resources. 19. Section 107. 20. This argument parallels the practice of dissociating rights from ownership of works not yet in the public domain. Modern copyright law acknowledges the privilege of the artist and heirs to benefit from a work that is owned by another party. An artist may retain control of the copyright of a work that has been sold, and may have additional moral rights that allow control of its use and disposition. 21 ‘Commercial uses that involve no “transformation” by users and harm no actual or potential markets will likely always be infringing, while nonprofit educational transformative uses will likely often be fair. Between these extremes, courts will have to engage in the same type of fact-intensive analysis that typifies “fair use” litigation and frustrates those who seek “bright lines” clearly separating the lawful from the unlawful.’ (‘The White Paper,’ op. cit. p. 80.) 22 The following short history of the term ‘intellectual property’ is adapted from e-mail messages to me from Pascal Kamina ([email protected]) of February 21 and 25, 1996. ‘As far as I remember’, Mr. Kamina relates, ‘The expression “intellectual property” @ropriete intellectuelle) was used by Nion (Droit civils des auteurs, artistes et inventeurs, 1846) as a general term for copyright and patents . Maybe there are earlier uses of “intellectual property” in the UK, in the US or in Germany (Blackstone did not use the term, nor did Kant or even Hegel (Philo. of Right 1821)). At that time legal authors were divided on the question of duration, mainly of copyright. The characterization of [intellectual property] rights as a species of “property” was sometimes used as an argument to claim perpetual rights (among other things). In these general discussions copyright, patents, etc., were described as an “incorporeal property”, as a “property of works of mind”, etc. . . From the 1870s some authors opposed to the characterization of

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[intellectual property] rights as property (and technically to a notion of incorporeal property) started to use the term “intellectual rights” (droits intellectuels), as a sui generis type of rights. There are textbooks entitled “intellectual property” at the end of the XIXth

centurv.’

23.

24. 25.

26.

27. 28.

One might surmise that the notion of ‘intellectual property’ may have developed alongside the industrial revolution as a means of placing firm value on the intellectual foundation upon which that era was built. That the words ‘intellectual’ and ‘property’ won out over ‘incorporeal’ and ‘rights’ may indicate that its meaning was thought of as analogous to other kinds of property, i.e. tangible, transferable and discrete. The American Heritage Dictionary (electronic version 3.6, 1994) reports that the word ‘amateur’ was used in the sense of ‘a person who engages in an art, for example, as a pastime rather than as a profession’ as early as the late 18th century, from which it develops its current pejorative connotation of someone who is not as good as a professional. Earlier, it had been used in the sense it took from its Latin root: as a lover or appreciator of things. In describing Holmes, Conan Doyle (Black Peter) uses the word in its original sense but plays it against its modern usage: ‘while he in turn professed the admiration and respect of a pupil for the scientific methods of the famous amateur.’ In Conan Doyle’s world Holmes is superior because he does not practice crime fighting as a profession; love and skill serve to elevate Holmes’s work into an art and to place his status above the others who work for money. ‘Gregson and Lestrade had watched the manoeuvers of their amateur companion with considerable curiosity and some contempt. They evidently failed to appreciate the fact, which I had begun to realize, that Sherlock Holmes’s smallest actions were all directed towards some definite and practical end’ (Study in Scarlet). Conan Doyle uses a double irony in Sherlock Holmes. Holmes is an amateur policeman, a lowly profession turned into an elite intellectual occupation. At the same time, Holmes’s arch-enemy Moriarty is a professor of mathematics, ‘the celebrated author of The Dynamics of an Asteroid, a book which ascends to such rarefied heights of pure mathematics that it is said that there was no man in the scientific press capable of criticizing it?’ Yet, he is ‘[t]he greatest schemer of all time, the organizer of every deviltry, the controlling brain of the underworld, a brain which might have made or marred the destiny of nations’ (Valley ofFear). Cast against type, Holmes and Moriarty prove the rule in their exceptions to it. Rudolf and Margot Wittkower, Born under Saturn, 1969, p. 53. New York Times, 28 April, 1995. When Charles Proteus Steinmetz (1865-1923) the great German electrical engineer joined General Electric in 1893 he was surprised to learn that he was actually going to be paid for his work. Biographies of 19th century artists often isolate their arttstic lives from their economic lives, Degas, Van Gogh, Gauguin, for example. Contrast the Renaissance tax exemption for humanistic pursuits with the US Taxation Code’s classification of scholarly work performed without compensation as a ‘hobby’ for which no tax advantage is allowed. The scholar’s right of access and the belief that the artifactual world belongs by wav of privilege of station to the inquiring scholar may clearly bc intuited from the stories of M.R. James. Known to art historians for his edition of the Apocryphal New Testament and for his monographs on Medieval manuscripts, Montague Rhodes James (1862-1936) is often considered one of this century’s finest authors of ghost stories. (M.R. James. Ghost Stories of an Antiquary, E.F. Bleiler, cd., New York, 1971.) In one famous story, Canon Albevic’s Scrap-Book, an English scholar or amateur (‘a Cambridge man’) arrives, without previous arrangement, in a small town near Toulouse to study the now closed cathedral. To gain access, he orders that the verger be fetched to open the church. The Englishman’s plans include filling ‘a note-book and to use several dozens of plates in the process of describing and photographing every corner of the wonderful church...’ What is most obvious, a century after this tale was written, is that the protagonist treats the church as if it were not owned by anyone and that he has just as much rtght to describe, study and photograph it as if it were one of his private possessions.